Long v. Carolina Baking Co. , 193 S.C. 225 ( 1939 )

It is always with trepidation that I venture to disagree with an opinion authored by Mr. Justice Bonham, but I would be derelict in my duty, as I see it, not to here record my view of Exceptions 1, 2, 3 and 4, which raise the issue whether the North Carolina law is sufficiently pleaded; and if by reason of the first trial of this case such issue has become academic.

This action was for the alleged wrongful death of respondent's intestate, and the only reference in the complaint to any North Carolina statute is contained in paragraph four of the complaint, and is as follows: "4. That the deceased left a widow, Mrs. Nell Long, who was entirely dependent upon him for support and this action is brought by the plaintiff as administrator for the benefit of the said widow and such other heirs as may under the law of North Carolina be entitled to benefit thereby."

As stated in the main opinion, the defendants (appellants here) did not demur to the complaint, nor did they set up in their answer the contention for which they now contend, but before the second trial, served the following notice on plaintiff's (respondent's) attorneys:

"Please Take Notice:

"That the defendants, not having raised the following objection by demurrer or answer, now file their notice of objection to the complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action, because the complaint shows that it is based upon the laws of North Carolina; and such laws have not been alleged in the complaint, as required by the law of South Carolina."

After the pleadings were read, one of defendants' (appellants') counsel stated in open Court: "At this time we move to exclude the evidence in the case because there is no cause of action set up in the complaint, the complaint being apparently under some form of Lord Campbell's or death statute of North Carolina, which is not pleaded in the complaint as required by law."

It will therefore be seen that upon the call of the case for trial, and after notice, the appellants demurred orally on the ground that the complaint did not state a cause of action, and later moved to exclude all evidence in the case because there was no cause of action stated in the complaint.

The trial Judge overruled the oral demurrer, and permitted plaintiff (respondent) to introduce the Lord Campbell Act of North Carolina. Plaintiff (respondent) neither offered to amend, nor amended this complaint so as to plead in substance said Act.

At common law there was no right of action for death caused by wrongful act. And in the absence of any allegation in the pleadings, where a statute of another State is relied upon as giving the right of recovery, of at least the substance of such statute, then the pleading is defective; and the complaint fails to state a cause of action.

In Rosemand v. Southern Ry., 66 S.C. 91, 98,44 S.E., 574, 576, this Court stated: "When a cause of action arises in another state, it cannot be said that the Courts and parties are familiar with the doctrines and requirements of the law applicable to the case, and that `they will at once perceive and know what are the primary and remedial rights and duties of both the litigants.' The complaint must therefore set forth the rule of law applicable to the facts from which the plaintiff's primary right and the defendant's primary duty arise, if they are founded upon statute; otherwise he will be forced to rely upon the common law as the foundation of these rights and duties. In the absence of allegations as to the laws of another state, the Courts will presume that the common law prevails in that state, 6 Ency. of Law (2d Ed.), 284; Gooch v. Faucett (122 N.C. 270), 29 S.E., 362, 39 L.R.A., 835; Sibley v. Young, 26 S.C. 415,2 S.E., 314; Watson on Pers. Inj., § 554."

And again in Crosby v. Air Line Railway, 81 S.C. 24,30, 61 S.E., 1064, 1066, after discussing the case of Rosemandv. Southern Ry., supra, the opinion continued: "But the rule, stated in its broadest terms in Rosemand's case, harmonizes with the simpler rule that the common law of the forum should govern in the absence of any evidence as to the law of a sister state, because there is no other known law by which the case is solvable; and the Court will not presume that the law of a sister state, whatever may be its historical origin, is contrary to the common law as administered in this State. Wherever the laws of another State are relied on to sustain an action or defense, they must be pleaded and proven. There is some conflict of opinion and much learning on the subject, but we regard the rule stated as the simplest and most practical, and find that it is well supported by authority. See Brown v. Wright, 58 Ark. 20,22 S.W. 1022, 21 L.R.A., 467, containing an elaborate note in which cases are collated."

The annotation in 18 A.L.R., at pages 1201-1202, so succinctly states the necessity ordinarily of pleading in substance a foreign law or statute when such law or statute is relied upon, that we quote with approval therefrom, the following:

"Since a foreign law is regarded as a matter of fact, it is uniformly held that it should be pleaded, so far as relied on, with such clearness and certainty, and at such length, as will enable the Court to judge of the meaning and effect to be given to it.

"`The law of another state * * * is nothing but a fact, and must be pleaded, as any other fact, with sufficient distinctness, that the Court, upon a statement of facts, may judge of what is the effect of the law.' Roots v. Merriwether (1871), 8 Bush (Ky.), 397.

"In Wellman v. Mead (1919), 93 Vt. 322, 107 A., 386, the Court said: `A complaint counting upon a statute of another State should set forth the statute and facts so specifically that the Court can see that the plaintiff has a right of action against the defendant.'"

Under the most liberal construction of pleadings, respondents' complaint cannot be said to comply with the rule in this State.

Nothing appears in the record on which this appeal was heard definitely showing that any demurrer or other objection to the sufficiency of the complaint for failure to state a cause of action was interposed at the first trial, and while the brief of respondent on rehearing asserts it, yet the brief of appellants emphatically denies it. Therefore, the Court can make no finding on the subject without basing its finding on mere inference and not upon any substantial evidence, or on the statement contained in respondent's brief. It does not seem that the Court should go so far as to make a finding so far reaching and so vital to the rights of the appellants on such a basis. If respondent intended to rely upon such a position, it was his duty to see to it that the record for appeal contained a sufficient basis for the Court to pass on it. The absence from the record of the proper supporting basis ought to be attributed just as much, and perhaps more, to the fault of respondent as to the fault of the appellants, since both the respondent and the appellants had equal rights and responsibilities in relation to the presentation of a proper and adequate record on appeal to this Court.

The extract from the record beginning with the words "I will state substantially * * *" (Transcript, page 9, folio 36), referred to in the majority opinion in support of the assumption that a demurrer for insufficiency was interposed at the first trial, does not at all necessarily indicate that fact, since the remarks of Judge Mann are equally susceptible of the inference that he was referring to something other than a ruling on a demurrer at the first trial. The notice of demurrer is on page 9 of the record, but no ruling on it appears. The record next states that the pleadings were then read, and immediately after the pleadings were read it shows that counsel for appellants made the statement that he would move to exclude respondent's evidence. The next thing appearing in the record is the Court's ruling, upon which so much stress is placed in the majority opinion. Upon consideration of the entire context it seems plainly evident that Judge Mann's reference to a former ruling by him could just as appropriately be applied to the notice of demurrer just previously interposed on this trial as to some ruling at another trial.

In the statement of Judge Mann on page 250 of the transcript, folio 1000, made in the course of his remarks in refusing to direct a verdict on this trial, when he referred to his remarks in the first trial, he plainly had reference to his remarks at that trial in refusing to direct a verdict and not to a ruling on a demurrer; but if there should be any doubt about this, the Court would have to rest a conclusion that he was referring to a ruling on a demurrer interposed at the former trial wholly upon surmise or conjecture.

There can be no doubt that an order sustaining or overruling a demurrer, from which there is no appeal, is in the nature of a final judgment, and that the questions thereby determined cannot be raised again in the same case. Hodgev. Lumber Corp., 90 S.C. 229, 71 S.E., 1009; Brewton v.Shirley, 93 S.C. 365, 76 S.E., 988; Mortgage AcceptanceCorp v. Broadwell, 153 S.C. 67, 150 S.E., 345; McEachernv. Wilson, 154 S.C. 201, 151 S.E., 472; and the same is also true for the same reason as to an order directing a verdict. Westbrook v. Hutchison, 190 S.C. 414,3 S.E.2d 207. This follows from the fact that an order sustaining or overruling a demurrer or directing a verdict is a final determination of the rights of the parties. It seems clear, however, as previously pointed out, that there is nothing in this record sufficient to warrant the assumption that any order was made in a former trial overruling a demurrer to the complaint; and if it should be suggested, as the majority opinion apparently does, that the rulings on the former trial had to do with the admission of testimony, it would seem to lay down a far-reaching and wholly new rule in this State to hold that such rulings were the law of the case on a retrial after a mistrial. It has never been supposed that the rulings of a Circuit Judge on the admissibility of testimony in a trial which has resulted in a mistrial are binding on the Circuit Judge who thereafter retries the case. This is obviously true for the reason that a mistrial is not a final determination of the rights of the parties, but on the contrary it determines nothing.

The cases cited in the majority opinion are clearly distinguishable, because in each of those cases there was some final determination of the rights of the parties in relation to the matter in controversy, but in this case there was a mistrial and no determination. The effect of a mistrial is very different from the effect of a final order or decree, or of an order sustaining or overruling a demurrer, or a direction of a verdict as to punitive damages as in Westbrook v. Hutchison,supra. The effect of a mistrial is to leave the case just as if there had been no trial at all. In Floyd v. Page, 124 S.C. 400,117 S.E., 409, this Court said: "The effect of the mistrial was to leave the parties litigant in statu quo ante, with the cause still pending for trial in the circuit court. The rulings of the trial judge in the court below having eventuated in no binding adjudication of the rights of the parties, the appeal is prematurely brought, and jurisdiction thereof may not be entertained. * * * "

The quoted excerpt from the case of Lorick v. SeaboardAir Line Railway, 108 S.C. 100, 103, 93 S.E., 332, it seems to me, is peculiarly applicable to the issue under discussion: "The other question in the case is based on the allegation that there was no evidence of negligence in the case on the part of the defendant that had a proximate causal connection with plaintiff's injuries. This point was not made or adjudicated in the former appeal, although it could have been made then as well as now, as the evidence in this case is practically the same as in the first case, and the defendant overlooked or did not think of it then and the defendant is within his rights in making it for the first time in the trial the second time in the circuit court."

Although he seemed to go entirely too far in his suggested application of the rule, yet counsel for respondent appears to have had the same view as to the effect of a mistrial, as will be indicated by a consideration of the remarks found on pages 248-249 of the Transcript of Record.

For the reasons above stated, Exceptions 1, 2, 3 and 4 should be sustained.

MR. JUSTICE CARTER concurs.